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Sparrowvsrevolution writes "In defense of user privacy, Twitter filed a motion (PDF) yesterday in a New York state court asking a judge to block a subpoena that would force the company to turn over the data of one of its users, Malcolm Harris. Harris was arrested in an Occupy Wall Street protest on the Brooklyn Bridge in October for 'disorderly conduct.' The company's lawyers claim that the subpoena violates the fourth amendment and Twitter's terms of service, which says that users' tweets belong to them and thus can't be handed over to law enforcement without their consent."

Is that many states have laws which allow their own law enforcement to subpoena records without a warrant. You can't tap a conversation but you can get phone records, identifying information, and general subscriber information without warrant. Any prosecutor or investigator is allowed this privilege in most states. Anyone who runs an ISP already knows this. Most people are under the impression that a judge has to sign a search warrant. That is assuredly not the case for most of the information that any service provider has stored. The fact this is happening between states gives Twitter the ability to say "sorry, try California courts instead" and also brings federal laws into action that might not apply if Twitter and the requesting party were both in California.

Yes, but under those rules, Twitter would only be required to show the court documentation pertaining to when he tweeted and to what parties the tweets may have been read by, not the actual content of the tweets which is what they want. For that, a warrant is needed for twitter to release 3rd party information.

Am I crazy, or is sending a subpoena to Twitter not a little over the top for a simple 'disorderly conduct' charge? What's next, raiding your home and seizing your computers and storage devices for jaywalking?

Yes they would need a warrant, and yes the judge should laugh them out of his courtroom for doing this on a 'disorderly conduct' charge. They can waste taxpayer's money and the court's time somewhere else.

... and Twitter's terms of service, which says that users' tweets belong to them...

What I'd wonder is: I may be just a matter of time until someone sends a twitter, and and repeats the comment in some other public forum... and Twitter sues them for copyright infringement.

After all, Twitter does claim to own your tweets. If this has any meaning at all, it means that they own the copyright. So if you repeat your own tweet somewhere else, you have violated the copyright that you assigned to Twitter when you signed up for an account.

Uh, due process? OK, how about root cause? Let's start at step one and answer the relevancy between someones private communications and a charge of disorderly conduct. What, are all OWS detainees winning the grand prize of an FBI file? Are they now considered domestic terrorists?

Kudos to Twitter and recognizing due process, but it is the least of our concerns here.

And any sane lawyer in the world can have that testimony thrown out as here-say without a physical proof that the witness was indeed at the location and party to the conversation and he can only speak specifically on the portions of the conversation that he input.

"Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted."[1] Per Federal Rule of Evidence 801(d)(2)(a), a statement made by a defendant is admissible as evidence only if it is inculpatory; exculpatory statements made to an investigator are hearsay and therefore may not be admitted as evidence in court, unless the defendant testifies.[3] When an out-of-court statement offered as evidence contains another out-of-court statement it is called double hearsay, and both layers of hearsay must be found separately admissible.[4]

And, in fact, it is very common for a witness to testify that the defendant has confessed a criminal act to them.

I've sat too many times in a court room and have seen too many witness testimonies ruled out as hearsay. (And yes, I blame android spellcheck for here-say). I get arrested for a crime. During the investigation, the detectives interview people in a bar that I frequent. One person, tells the investigators that he overheard me tell someone I did it, or that I even told him directly. Sane lawyers will have that testimony tossed as hearsay due to not having any form of corroboration or evidence. With that being

Well, there's two ways to interpret "hearsay" testimony. In general terms, it's "witness overheard suspect say something damaging" which is actually just fine for evidence, though it would probably be more useful in support of physical evidence than as anything truly damning.

The narrower, thrown out of court, version of hearsay is when a third or even fourth party gets involved, such as Johnny being told by Jimmy that Joe said he killed James. It's silly to use Johnny as a witness; there's simply too m

Definitely can be, but you have to look at the attorneys involved, the judge and the evidence. I have seen judges toss 1st person testimony as hearsay due to no corroborating evidence while I have seen some judges accept hearsay with no corroboration. It can really depend on the person sitting the bench.

>And oftentimes your friend can be subpoenaed as to the contents of that communication.

To what end ? That's hearsay evidence and wouldn't be admissible anyway.Let's try to stretch the analogy to where it at least makes sense. Your friend is death, you don't know sign language, so while she was there you communicated by writing to her on little sticky notes.Now in theory she could be subpoenaed to hand those sticky notes over - at least that's a real written record, so not hearsay anymore and thus proper

Maybe the police are trying to charge this guy with more than disorderly conduct. Incitement perhaps? The police don't always tip their hand unless they need to. Sometimes they will see if you will voluntarily give information up, then they don't have to go searching for it. I'd bet someone was hoping Twitter would just cough it up.

What, are all OWS detainees winning the grand prize of an FBI file? Are they now considered domestic terrorists?

Pretty much every protester is considered a possible terrorist by the gov't today, and it's likely that most of the OWS protesters went in with the assumption that they were going to get a file opened on them. All the ones that I've met did anyway (most of them probably already had one though, so they might not be representative).

Pretty much every protester is considered a possible terrorist by the gov't today, and it's likely that most of the OWS protesters went in with the assumption that they were going to get a file opened on them.

And we are back to the 60s again when the FBI used to send people into churchs and other gatherings of non-violent organizations in order to spy on, and sometimes screw with, them. COINTELPRO [wikipedia.org] shit. Pretty sad it only took ~35 years for them to start pulling the same stunts. We have some really short institutional memory.

Pretty much every protester is considered a possible terrorist by the gov't today, and it's likely that most of the OWS protesters went in with the assumption that they were going to get a file opened on them.

And we are back to the 60s again when the FBI used to send people into churchs and other gatherings of non-violent organizations in order to spy on, and sometimes screw with, them.

Now, The Occupy protesters were not non-violent. In fact they some were very violent when they were removed from the places they 'occupied'. The peaceful ones are uninteresting, but the violent ones are a whole other ballgame. They have the potential to be both rioters and down the line armed revolutionaries, and any civilized society has to defend itself against those seeking to overthrow it as swift and fast as possible. Thus the interest from law enforcement.

And we are back to the 60s again when the FBI used to send people into churchs and other gatherings of non-violent organizations in order to spy on, and sometimes screw with, them. COINTELPRO shit. Pretty sad it only took ~35 years for them to start pulling the same stunts. We have some really short institutional memory.

What, are all OWS detainees winning the grand prize of an FBI file? Are they now considered domestic terrorists?

Well why? Of course they are terrorists. Haven't you been paying attention over the last decade on what's been going on in the US, the UK and several other countries in the world?

Step 1: push through laws that allow police to detain "suspected terrorists" without charges for undetermined lenghts of time. Push through laws that take all normal detainee rights away from "suspected terrorists". In the meantime you leave all other crimes alone, as of course only those horrible "suspected terrorists" need their

disorderly conduct by itself, no. but if they suspect the person organized or encouraged the disorderly conduct with unprotected speech (equivalent to yelling fire in a theater) over the twitter medium, then this sounds like a normal investigation.

Under the current standard, yelling fire in a crowded theater (clear and present danger) is not enough to unprotect speech, but rather that it has to incite to immediate lawless behavior. However, organizing a disorderly conduct mob would still qualify... this newer standard came as a result of many pacifists being charged with criminal speech acts when protesting wars.

But a subpoena is also a part of due process... it's properly a court order compelling testimony of a witness... no, it's not a warrant, but they're not going to Twitter to search and seize, it's a court order demanding that Twitter produce the information requested as it is a necessary testimony to a legal proceeding.

In fact, this is the typical way to request information to obtain information about identity, etc from a 3rd party.

Namely, wtf is going on here, a subpoena is standard proper due process in th

The secret is in the reading of TFA. Twitter's angry that the subpoena claims that Harris has no right to challenge it. The only circumstance allowed by the Stored Communications Act under which the subpoena is filed in which this right can be withheld is if Harris has "no proprietary interest in the content," which is patent bullocks and makes no sense. Officially the subpoena is being made by the prosecution in anticipation of a particular defence; by contrast I do believe a warrant requires suspicion of guilt before it can be issued. It's also very, very unnecessarily broad, and hence blatantly meant to fish for incriminating materials.

1. that the data belongs to Harris under Twitterâ(TM)s terms of service, and handing it over would violate both those terms of service and the SCA.

2. it argues that handing over Harrisâ(TM)s data would violate the Fourth Amendmentâ(TM)s protections against searches without a warrant, which it argues applies even when the government is seeking information about allegedly public activities like a userâ(TM)s tweets.

3. it points out that Twitter is in California, and argues that the New York prosecutors need to make their case to a California court to obtain Twitterâ(TM)s data.

And the actual motion [aclu.org] explains some pretty compelling reasons why the subpoena went forward:

1) That Mr. Harris had to agree to Twitter's terms of service to have an account;2) That the terms of service grant Twitter the following:

By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed).

The essential argument is that since the user is granting Twitter that license to his tweets, the user has no "proprietary" (ownership) interest in the tweets, because by posting, he specifically gives up his right to prevent Twitter from doing anything they wish with that tweet he's submitted. In essence, they conclude that he's "given away" his tweet to Twitter via that license, and that he therefore has no standing to claim that it is "his property" which may not be disclosed by Twitter without his permission.

That's a very broad and subjective interpretation of the law. Twitter's TOS is allowing Twitter the right to offer other's the ability to transmit, re-tweet, allow other's to quote, etc. It does not claim ownership of the tweets, just that if one uses Twitter to tweet the thoughts, photo, etc, other users within the system can use the Twitter UI to do the same. It's still Harris' intellectual property, as Harris did not grant Twitter the right to use it outside of Twitter, nor did Twitter request it. It's s

Well, it also happens to be the court's interpretation of the law, so... that makes it at least slightly more official than your opinion or mine.

Twitter's TOS is significantly broader than you're trying to claim it is - "he didn't grant Twitter the right to use it outside of Twitter" - the TOS actually says he DOES grant them the right to use it anywhere they see fit - "any and all media or distribution methods (now known or later developed.)" In

Granting a license to something does not negate your proprietary interest in that something. Just the opposite -- you grant a license rather than transferring title if you want to retain a proprietary interest.

I don't think twitter's second argument has much merit; I don't think a Fourth Amendment claim against the government obtaining information which had once been made public will stand up. But Harris should at least get the chance to make it the argument.

Granting a license to something does not negate your proprietary interest in that something.

May I take this to mean that you also support restrictive EULA's which give the "owner" ultimate control over what you may or may not do with the software, books, music, etc. that you create using their tools?

After all, if I grant you an unrestricted, royalty-free license to use something, that doesn't mean I no longer 'own' the thing I've given you the license for, so it's absolutely okay for me to come along and te

Granting a license to something does not negate your proprietary interest in that something.

May I take this to mean that you also support restrictive EULA's which give the "owner" ultimate control over what you may or may not do with the software, books, music, etc. that you create using their tools?

No; I take the position that this is what EULAs are intended to do, but that the EULAs for most products are not valid in general because (among other reasons) there in fact has been a transfer of title (of a co

No, because that would actually violate the license (which you specified was "unrestricted") even if it were valid. Just because a license grantor retains ownership does not mean they get to retroactively change the terms of the license.

Twitter is not attempting to appropriate the work as their own, nor is the court. Twitter is being told, "Hey, I need to look at your copy of those tweets for court business." And by your own argument, Mr. Harris has ceded all proprietary interest in Twitter's *copy* of hi

First, this isn't a copyright issue. It's a subpoena of business records related to a case before the court. There are restrictions on the type of information that may be subpoenaed, but the court has ruled that the information being requested meets the requirements for information that may be requested from a service provider. "That's copyrighted" is not sufficient cause to refuse a subpoena. If it was, Twitter would have argued it in its motion to the court. It didn't.

So what you're saying is that you support restrictive EULA regimes which let the copyright owner tell you what you can and cannot do with an item, even after they've granted you a license to do whatever you want with it? That is a logical consequence of the statement you've just made.

Not really. The argument says that if you grant a license to a copy of something you've published, the person who granted the "no restrictions" license loses any say in the matter of what the licensee does with their copy of the publication. It doesn't say that granting a license cedes all copyrights, it says that granting the license disclaims the copyright owner's rights to control what Twitter does with the copy they've licensed to Twitter. And that's what the government has asked for - the informatio

First, per the Twitter terms of service, all communication is the property of the user and NOT Twitter. Twitter is arguing that it can't surrender what it doesn't own without a warrant. Think of it like this. I open a safe deposit box at my local bank. If the government wants access to property in the box, then is a subpoena to the bank enough? Twitter is in essence claiming they are like the bank; a repository and conduit, nothing more. (for safe deposit boxes, a subpoena will get you the paperwork about the box, but not inside it)

Secondly, Twitter is saying that the government needs a warrant for this information under the Fourth Amendment.

Third, Twitter is saying that if New York prosecutors want access to Twitter information, they need to file in Twitter's home state of California.

There is a lot of unsettled law in moving from the physical to the digital world. The government is arguing that many rights from the physical world don't translate to the digital one, Twitter disagrees.

But a bank cannot access your safe deposit box without you. So, they ensure that even when they hold anything for you that they construct a continued expectation of privacy with no right of the bank to violate that right without your consent.

Meanwhile, Twitter can access all your details and Tweets at will, and you grant them rights to redistribute at will... thus dismantling any argument of a right to privacy.

With a warrant, the bank just drills the lock, so the bank can have access as well. Or, if you like, how about securing an item in their vault. The bank now has unfettered access, but a warrant is still necessary for the government to seize the goods.

I would disagree that licensing to redistribute dismantles any expectation of privacy. The government must still act within the established law. In this case the Stored Communications Act. This act allows the government to seize things such as email contents, etc and was the law used by the government in this case to issue the subpoena.

This SCA offers a lower than warrant standard called "D" subpoenas for information about an account, but not the contents of the "stored" communication which still require a warrant. This is where it gets tricky. The government in most of the country doesn't count communications that have already been transmitted or viewed by the recipient as any longer being "stored" for the purposes of the act. However, in Theofel v. Farey-Jones, the Ninth Circuit expanded the meaning of "stored" to include such things as read emails, etc. In this case they ruled that personal emails (presumably regardless of number of recipients) were protected and required more than just a "D" subpoena. Now, you can argue that a tweet is fundamentally different from a email to a million people and I would consider this a reasonable enough question for a court to address. This is why Twitter wants this whole thing moved to California, where the courts would have to follow the precedent of the Ninth Circuit. It is also why the government brought the suit in another district.

I don't have to subscribe to view a public billboard. There is at least some constriction from being as purely public as a billboard. He is making tweets with the expectation of communicating with a certain subset of those subscribers. Is the difference between public and private the intention, the medium of communication, the likelihood of further dissemination?

Putting that aside for the moment, the government is also after his private tweets. The internal tweet information they want also provides addit

Twitter is standing up for user privacy rights by saying, user tweets are the users property and not ours and we won't just give them out to anyone that asks. If a judge issues a warrant then we will comply with the law but Twitter is not going to be an evidence locker that lawyers can take everything you say and hold it against you.

One might argue that Booth considered himself a patriot, is what the sig is saying I think.

When does anyone wake up and consider themselves a proper villain? I doubt even Hitler thought of himself as a villain.

History determines who is the villain and who is the patriot. The victors write history. Some philosophers might are argue that there is no "right or wrong", just different points of view. The matter seems highly subjective, yet ironically, it's insisted upon being objective by everyone.

I've never understood people who suggest that assigning moral blame is simply the victors prerogative, as though nobody else would have an opinion. If this were the case, history would not contain episodes of "victor"-villainization. But they're actually really easy to find. In the U.S. alone, and just off the top of my head, we have slavery, genocide (or close to it) of the native americans, japanese internment, segregation, the Mai Lai massacre...the list goes on. No, I think it is cear that people can detect right from wrong (if only very imperfectly) no matter how the victor spins it. (Of course, suppressing information may be a problem; but it's a different one from the mater of moral relativism you're talking about.)

The thing is that few if any think about this distorted perception and accept half-baked memes as "truth".

In American history, George Washington is a stark example. We have a state, the federal capital and untold number of cities named after the guy. Mediocre education, sub-par military ability (he lost many more battles than he won), he prevailed at Yorktown against his will (it was de Rochambeau who forced him to attack), and so on. Basically his great qualities are the "survivor skill" and that he refused to be coronated as King.

Yet he's looked at as the second Messiah's incarnation, kids in school shed tears when they hear his name and everyone reveres him. Really?

A person can be forced by subpoena to testify. They can be forced to produce their own documents, or documents they created for others. They cannot be forced by subpoena to provide other people's documents that the other people wrote for themselves. That requires a warrant, which has a higher standard.

Indeed I can be subpoenaed to produce documents that another has given me, at least in some cases. The right to privacy was forfeit by sharing the material with a third party, and there is no intention that the documents could be used against me for criminal proceedings, so Twitter has no 4th amendment argument, and the third party who owns the document has no expectation of privacy.

e right to privacy was forfeit by sharing the material with a third party,

Really? Where is the line drawn?

If I send an email, did I share it with my ISP so it is not private? What about my stock portfolio stored on vanguard.com? Or the pictures of me naked I stored on dropbox.com?

If your email was unencrypted then it was being sent to an individual. The ISP is expected not to read your emails though, so generally, even if email is unencrypted it is accepted that email is similar to verbal communication... namely, privacy is expected, but anyone that you talked to is allowed to share such communication at will... in one-party consent states they can even record it, and even in two-party consent states, IM and emails are known to be regularly recorded, and thus by using such a method

There's about 150 years of case law that declare that bank records can be subpoenaed with the defendant having no standing to move to quash. It's actually one of the main precedents the judge used in this case to squash the defendant's motion.

Admittedly it wasn't worded well, but that isn't what i meant. Separate the warrant from making things difficult for standing in the way. Like a protection racket, in a twisted backwards way. "Play or pay"

FTA: "Harris has deleted all public tweets before February"...and... "It’s worth noting that all of Harris’s data, including private direct messages and deleted tweets, would likely be included in the subpoena."

The prosecution believes that his tweets (including those deleted) will contradict his "anticipated defense" - specifically, that he was induced or forced to step onto the roadway by police, rather than stepping out onto the roadway of his own volition, and obstructing traffic. For instance, if they can show he tweeted a photo of himself and some other protesters dancing around in the roadway minutes before he was arrested, it sort of torpedoes the "The police threw me into the street!" defense.

The reasoning the court is using in supporting the subpoena (by rejecting the defendant's motion to invalidate it) is that the records are akin to bank records - they are *about* the user, but the user has neither possession nor a "proprietary" interest in those records - in other words, the records belong to the bank, and so a subpoena is sufficient for the bank to turn over records about the defendant. Given Twitter's terms of service (granting them a worldwide irrevocable license to reproduce, present and display... etc. etc.... your tweets) and the precedent of bank records, the judge has ruled that the defendant has no standing to challenge the validity of the subpoena.

You can read the full order here [aclu.org], and it goes into fairly deep detail about the issue, and is a fairly straightforward read.

While I agree with you, and think the vast majority of the decision is very well reasoned, this quote scares the crap out of me:

The widely believed (though mistaken) notion that any disclosure of a user's information would first be requested from the user and require approval by the user is understandable, but wrong. While the Fourth Amendment provides protection for our physical homes, we do not have a physical "home" on the Internet. What an Internet user simply has is a network account consisting of a block of computer storage that is owned by a network service provider.

If that becomes a set precedent, it will have an incredibly chilling effect on online privacy.

If that becomes a set precedent, it will have an incredibly chilling effect on online privacy.

It is known as third party doctrine - in essence, if you disclose information to another person via a third party, you lose your 4th Amendment protections relative to that information, at least insofar as the third party is concerned. The theory is that by revealing that information to (or via) the third party, you have waived your "reasonable" right to privacy. The Stored Communications Act actually enumerates s

Twitter would have to answer if they have an account from this person, if they have tweets by him, if those tweets were "deleted" and some other meta-information, if they were given a subpoena in the state of California. However, they would not have to reveal the actual content of those tweets, until a warrant was properly issued by a Judge.

Before a Judge should give such an order, there should be at least indications that the content would be incriminating for the person and as such, that the tweets would

Twitter would have to answer if they have an account from this person, if they have tweets by him, if those tweets were "deleted" and some other meta-information, if they were given a subpoena in the state of California. However, they would not have to reveal the actual content of those tweets, until a warrant was properly issued by a Judge.

This subpoena is a Section 2703(d) subpoena, allowed for under the SCA, per the ruling I linked:

In order to obtain the court order found in 2703(d), the People must of

No, it's correct. If you're going to be pedantic, at least make it correct. Can't here means that it would be a violation of their ToS and that they'd likely get sued or subjected to whatever penalties that entails.

Can't hasn't meant only ability for centuries, get with the times man.

lawyer's don't usually say things like "can't" and "won't" because they aren't formal. even engineers aren't likely to use them in reports. in legalese, "can't" is more open to interpretation (or misinterpretation, or simply misreading) than "can not". in engineering its all about liability and covering your ass as much as possible.

but i agree that such formality is totally inappropriate for slashdot; the summary will be misinterpreted regardless of what language its written in.